ML20034H775
| ML20034H775 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/12/1993 |
| From: | Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13718 CPA, NUDOCS 9303220060 | |
| Download: ML20034H775 (11) | |
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UNITED STATES OF AMERICA
- NUCLEAR REGULATORY. COMMISSION -
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l'faNiA In the Matter of
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. Docket No. 50-446-CPA
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TEXAS UTILITIES ELECTRIC
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Construction Permit Amendment r.-l COMPANY
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b (Comanche Peak Steam Electric
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Station, Unit 2):
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NRC STAFF RESPONSE TO THE COMMISSION'S ORDER TO SHOW CAUSE-WHY THE PROCEEDING SHOULD NOT BE DISMISSED AS MOOT
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In the Matter of
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Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment COMPANY
)
)
(Comanche Peak Steam Electric
)
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Station, Unit 2)
)
NRC STAFF RESPONSE TO THE COMMISSION'S ORDER TO SHOW CAUSE WHY THE PROCEEDING SHOULD NOT BE DISMISSED AS MOOT Marian L. Zobler Counsel for NRC Staff March 12,1993 f
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,1 March 12,1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment.
COMPANY
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
P
'E NRC STAFF RESPONSE TO THE COMMISSION'S ORDER TO SHOW CAUSE WHY THE PROCEEDING SHOULD NOT BE DISMISSED AS MOOT INTRODUCTION On March 5,1993, the Nuclear Regulatory Commission (Commission) directed the parties to the above captioned proceeding to show cause why the Commission should not "(1) dismiss the proceeding and the pending appeals as moot; (2) vacate the Licensing Board's order in accordance with United States v. Munsingwar Inc., 340 U.S. 36 (1950), (3) and deny any further extension as unnecessary, thereby treating the construction permit as having expired as of the date of a Commission order dismissing the proceeding as moot." Order at 1.
For the reasons set forth below, the Staff submits that the construction permit extension proceeding (CPA proceeding) and the pending appeals are moot and should be dismissed and that the Licensing Board's order should be vacated in accordance with the United States Supreme -
Court's ruling in Munsingwar. Furthermore, the Staff submits, in response to the third issue -
raised by the Commission's order, that the construction permit for the Comanche Peak Steam I
t
4
- [ r Electric Station (Comanche Peak), Unit 2 has been converted into an operating license and thus, its expiration is'no longer an issue.
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BACKGROUND On December 15, 1992, the Atomic Safety and Licensing Board (Licensing Board) designated in the above captioned proceeding issued its decision denying intervention in the CPA proceeding to Petitioners B. Irene Orr and D.L Orr (Orr Petitioners) and to Petitioners.
F R. Micky Dow, Sandra Long Dow, dba Disposable Workers of Comanche Peak Steam Electric Station (Dow Petitioners).3 Texas Utilities Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37,36 NRC
, slip op. at 31-32 (December 15, 1992). On December 30, 1992, the Orr Petitioners filed' their " Appeal of ' Atomic Safety and Licensing Board Memorandum and Order." The Orr Petitioners filed their brief in support of their appeal on -
January 8,1993. On January 7,1993, the Dow Petitioners filed a " Motion for Leave to File Out of Time and Request for Extension of Time to File Brief," in which the Dow Petitioners j
also filed a notice of appeal. On January 19,1993, the Commission permitted the Dow-
'r Petitioners to perfect their appeal and granted them an extension of time in which to file a brief-in support of their appeal until February 8,1993. As of this date, the Staff has not received the.
Dow Petitioners' brief.
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' The Licensing Board also denied intervention to Joseph J. Macktal, Jr., and S.M.A.
Hasan who had filed an intervention petition in conjunction with the petition filed by the Orr Petitioners.
I
I 3-i On February 2,1993 the Staffissued an operating license for Comanche Peak, Unit 2 authorizing fuel loading and operation up to 5 percent of rated power. Comanche Peak Steam Electric Station, Unit 2: Texas Utilities Electric Co.; Issuance of Facility Operating License, 58 Fed. Reg. 7822 (February 9,1993). Also on February 2,1993, the Orr Petitioners filed an
- Emergency Motion to Stay Issuance of Iow-Power Operating License."
On February 3,1993, the Commission denied the emergency stay request. Texas Utilities Elec. Co.
(Comanche Peak Steam Electric Station, Unit 2), CLI-93-02,37 NRC
, slip op. (February 3, r
1993).
On March 5,1993, the Commission issued an Order directing the parties to this proceeding to answer questions relating to the issue of whether this proceeding and the pending appeals are moot. Order at 1.
DISCUSSION l
A.
The Construction Permit Extension Proceeding Should Be Dismissed As Moot The concept of mootness is derived from the requirement of Article III of the United States Constitution that the judicial branch may only decide cases or controversies. SEC v.
Medical Committeefor Human Rights, 404 U,S. 403, 407 (1972) quoting Liner v. Jafco, Inc.,
375 U.S. 301, 306 n.3 (1964). Once an issue has become moot, it is no longer a case or j
controversy and, accordingly, a court may not decide the issue. See id. A proceeding becomes i
moot when the parties to a proceeding no longer have a legally cognizable interest in the l
outcome of the litigation.2 See Powell v. McCormick, 395 U.S. 486, 496 (1969). "Mootness There is an exception to the mootness doctrine in which a court will review a case if the 2
(continued...)
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i results when events occur during the pendency of a litigation which render the court unable to grant the requested relief." Carras v. Williams,807 F.2d 1286,1289 (6th Cir.1986). When a proceeding becomes moot while an appeal is pending, it is the practice in federal court that the appellate court vacates the decision of the lower court and remands the proceeding.with an e
instruction to dismiss. Munsingurar, 340 U.S. at 39-40.
Although NRC adjudicatory tribunals are not subject to the " case or controversy" limitation of Article III of the Constitution, the concept of mootness has been applied to Commission proceedings. See, Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714,17 NkC 86, 93-94 (1983); Northern States Pourr Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), vennant Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Station), ALAB-455,7 NRC 41 (1978), remanded on other grounds sub nom. State of Minnesota v. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir.
1979). In the event that a proceeding has been rendered moot, advisory opinions should not be issued absent a compelling cause. See Comanche Peak, ALAB-714,17 NRC at 93. Advisory.
opinions "should be reserved (if given at all) for issues of demonstrable recurring importance."
i 2(... continued) issue is " capable of repetition, yet evading review." See Murphy v. Hunt,455 U.S. 478,482 (1982). This exception applies when the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that the plaintiff or petitioner will again be subjected to the same action. Id. See also Puget Sound Pourr and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), CLI-80-34,12 NRC 407, 408 (1980). This. exception is not applicable to the instant proceeding, since the construction permit has been converted into an operating license. See 10 C.F.R. Q 50.23. Therefore, the same action, the extension of the permit, cannot be taken again.
1
9..
Long Island Light Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387,'
390 n.4 (1983).
The CPA proceeding, here, is moot because the construction permit for Comanche Peak, Unit 2 no longer exists. The construction of Comanche Peak, Unit 2 is substantially.
complete and an operating license was issued on February 2,1993. 58 Fed. Reg. 7822. The Atomic Energy Act and the Commission's regulations provide that once construction of a facility is completed, absent good cause, the Commission will-issue an operating license.
See 42 U.S.C. f 2235, as implemented by 10 C.F.R. f f 50.23,50.56. Good cause to the contrary not having been shown, the construction permit which is the subject of this proceeding has been converted, pursuant to sections 50.23 and 50.56, into an operating license. The Commission, accordingly, cannot grant the relief sought by the Petitioners, the denial of the construction i
permit extension request.
See Carras, 807 F.2d at 1289. Moreover, no compelling' cause exists which would require the rendering of an advisory opinion. Since the construction permit j
for Comanche Peak, Unit 2 no longer exists, the issue of this proceeding, whether good cause exists for the construction permit extension for Comanche Peak, Unit 2, is not an issue of
" demonstrable recurring importance."' See, Shoreham, ALAB-743,18 NRC at 390 n.4. The proceeding is, therefore, moot and should be dismissed.
i 3 On at least one occasion, the Appeal Board found a compelling cause where the issue on appeal involved primarily issues of law that would require a first-time interpretation of the Commission's regulations that would likely be invoked again in the near feature. Long Island Light Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900,28 NRC 275,284-85 (1988).
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The Licensing Board's Order Should Be Vacated It is established NRC practice that once an appeal has been dismissed as moot, the i
licensing board's decision below must be vacated. Consumers Power Co. (Palisades Nuclear Power Facility), CLI-82-18,16 NRC 50,51 (1982); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-874, 26 NRC 156,158 (1987).
The Commission, following the Supreme Court's decision in Munsingmcar, has determined that where through " happenstance" a proceeding becomes moot, the unreviewed decision below must be vacated.
Fewell Geotechnical Engineering, Ltd. (Thomas E. Murray, Radiographer),
CLI-92-5,35 NRC 83,84 (1992). A decision below will not be vacated, however, if the appeal has become moot due to the actions of the losing party. Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), ALAB-944,33 NRC 81,103 (1991). See also, U.S. v. Ganie, 848 F.2d 1307 (D.C. Cir.1988). It would be unfair to the_ prevailing party below to lose the benefits of a favorable decision due to some action on the losing party's part which rendered the appeal moot. See Kerr-McGee, ALAB-944, 33 NRC at 103; Garde, 848 F.2d at 1311, In the instant CPA proceeding, the conversion of the construction permit into the operating license could not be considered " happenstance," but rather the result of a conscious act on the part of the Licensee, which requested the low power license, and the Staff, which issued it. However, the exception to the general rule of vacatur would not apply, since both the Staff and the Licensee were the prevailing parties. Accordingly, it would not be unfair to the prevailing parties to vacate the Licensing Board's decision since it was the prevailing parties, I
the Staff and the Licensee, whose acts caused the appeal to become moot. The Licensing Board's decision, therefore, should be vacated.
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7 C.
No Funher Extension of the Construction Permit Is Necessarv Finally, the Commission, in its Order, raised the issue of whether the Commission should " deny any further extension as unnecessary, thereby treating the construction permit as-having expired as of the date of a Commission order dismissing the proceeding as moot." Order.
at 1. The Staff submits that since the construction of Comanche Peak, Unit 2 is substantially complete and since an operating license has already issued, authorizing fuel loading and operation of up to 5 percent of rated power, no further extension of the construction permit would be necessary.
CONCLUSION
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For the foregoing reasons, the CPA proceeding and pending appeals should be dismissed as moot and the Licensing Board's order vacated.
Respectfully submitted, 4
Marian L.
b Counsel for C Staff Dated at Rockville, Maryland this 12th day of March,1993 e
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UNITED STATES OF AMERICA usNRc.
NUCLEAR REGULATORY COMMISSION 33 ER 12 P3:36-BEFORE THE COMMISSION i<
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' ih MJCti In the Matter of
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Docket No. 50-446-CPA T
TEXAS UTILITIES ELECTRIC
)
Constmetion Permit Amendment'-
COMPANY
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)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO THE COMMISSION'S '
l ORDER TO SHOW CAUSE. WHY THE. PROCEEDING -SHOULD NOT BE' DISMISSED AS MOOT" in the above-captioned proceeding have been. served on the :
following by deposit in the United States mail, first class and by facsimile, or as indicated L by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail-i system, or as' indicated by a double asterisk, by. hand delivery this 12th day of March '
3 1993:
Morton B. Margulies, Chairman
- R. Micky Dow Administrative Law Judge Sandra Long Dow dba Disposable Atomic Safety and Licensing Board
. Workers of Comanche Peak Steam U.S. Nuclear Regulatory Commission-Electric Station Washington, D.C. 20555 506 Mountain View Estates Granbury, TX 76048 James H. Carpenter
- Peter S. Lam
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 r
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George L. Edgar Office of the' Secretary (16)**
Steven P. Frantz
. U.S. Nuclear Regulatory Commission Nancy L. Ranek Washington, D.C. '20555 -
New' man & Holtzinger, P.C.
Attn: Docketing and Service Section Suite 1000 1615 L Street, N.W.
Atomic Safety and Licensing Board Washington, D,C. 20036 Panel (1)*
U.S. Nuclear Regulatory Commission Michael D. Kohn Washington, D.C. 20555 Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.
Office of Commission Appellate 517 Florida Ave., N.W.
Adjudication (1)*
Washington, D.C. 20001 U.S. Nuclear Regulatory Commission -
Washington, D.C. 20555 Adjudicatory File (2)*
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Section p
s -
Marian L. Zobler Counsel for NRd Staff Dated Rockville, Maryland this 12th day of March 1993 k
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